EXHIBIT 10.8(F)
Fort Howard Corporation
1919 South Broadway
Green Bay, Wisconsin 54304
March 1, 1995
Amended and Restated Management Equity
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Participation Agreement
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Dear Sirs:
Reference is made to the Amended and Restated Management Equity
Participation Agreement, dated as of August 8, 1988, by and among FH Holdings
Corp., a Delaware corporation, and the other parties signatory thereto, as
amended and supplemented from time to time, including the letter agreements
dated June 27, 1990, between Fort Howard Corporation, a Delaware corporation
(the "Company"), and the other parties signatory thereto (collectively, the
"MEPA").
The provisions of the MEPA, insofar as such provisions relate to
the shares of Voting Common Stock, par value $.01 per share, of the Company
sold to Management Investors (as defined in the MEPA) pursuant to the
provisions of the MEPA, and options to purchase shares of such Voting Common
Stock granted to Management Investors pursuant to the provisions of the MEPA,
are hereby amended, effective as of March 1, 1995 (the "1995 MEPA Amendment"),
as follows:
1. Section 1.1 is amended by deleting the definition of "Fair
Market Value" and by substituting the following therefor:
""Fair Market Value" means, on any given date, the closing
price of the shares of Common Stock, as reported on the
NASDAQ/National Market System for such date or such national
securities exchange as may be designated by the Committee (as
defined in the Fort Howard Corporation Management Equity Plan) or,
if Common Stock was not traded on such date, on the next preceding
day on which Common Stock was traded."
2. The definition of "Options" set forth in Section 1.1 is
amended by deleting the last sentence thereof and by adding the
following sentence to the end thereof:
"The exercise price of a Vested Option may be paid in the form of
cash or, in the sole discretion of the Committee, in shares of
Common Stock already owned by the Management Investor (valued at
their fair market value as determined by the Committee in its sole
discretion), in other property acceptable to the Committee or in
any combination of cash, shares of Common Stock or such other
property. The exercise price may also, in the Committee's sole
discretion, be paid in the form of shares of Common Stock withheld
by the Company from the shares that would otherwise have been
received by a Management Investor upon exercise of the Vested
Option (which shares shall be valued by the Committee at their
fair market value, net of the applicable exercise price, as
determined by the Committee in its sole discretion). In its
discretion, the Committee may also permit a Management Investor to
exercise a Vested Option through a "cashless exercise" procedure
involving a broker or dealer approved by the Committee, provided
that the Management Investor has delivered an irrevocable notice
of exercise (the "Notice") to the broker or dealer and such broker
or dealer agrees: (A) to sell immediately the number of shares of
Common Stock specified in the Notice to be acquired upon exercise
of the Vested Option in the ordinary course of its business, (B)
to pay promptly to the Company the aggregate exercise price (plus
the amount necessary to satisfy any applicable tax liability) and
(C) to pay to the Management Investor the balance of the proceeds
of the sale of such shares over the amount determined under clause
(B) of this sentence, less applicable commissions and fees;
provided, however, that the Committee may modify the provisions of
this sentence to the extent necessary to conform the exercise of
the Vested Option to Regulation T of the Exchange Act."
3. Section 1.1 is amended by deleting the definition of
"Stockholders Agreement" and by substituting the following therefor:
""Stockholders Agreement" shall mean the Stockholders
Agreement dated as of March 1, 1995, among the Company and the
other parties thereto, as amended from time to time."
4. Section 1.1 is amended by deleting (i) the definition of
"Transfer Restriction Period" and (ii) all definitions that are used
solely in Sections 8.1, 8.2, 8.3, 8.4, 8.5 and 8.6 (as in effect prior
to the amendments set forth herein).
5. Section 1.1 is amended by deleting the definition of "Vested
Options" and by substituting the following therefor:
""Vested Options" shall mean all Options granted to an
individual and which are outstanding on the effective date of the
1995 MEPA Amendment, which Options shall vest and become
exercisable on such date; provided, however, that Vested Options
shall not be exercisable unless the Common Stock subject to such
Vested Options has been registered under the Securities Act and
qualified under applicable state "blue sky" laws in connection
with the offer and sale thereof, or the Company has determined
that an exemption from registration under the Securities Act and
from qualification under such state "blue sky" laws is available."
6. Section 5.1 is amended by deleting the words "and VIII" and
"except in the case of sales pursuant to Sections 2.4, 2.5 and Articles IV and
V of the Stockholders Agreement".
7. Section 7.1 is amended in its entirety to read as follows:
"General Restrictions on Transfer. Each Management Investor
agrees that he will not Sell (as defined below) any Common Stock
or any interest therein (i) for the period ending 180 days after
the effective date of the Registration Statement filed with the
Commission on November 23, 1994, as amended, or (ii) following the
expiration of such 180-day period, except in compliance with the
Securities Act and any applicable state securities laws. Subject
to Section 7.5 hereof, no Option (whether or not a Vested Option)
or any right or interest therein may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of
(collectively, "Sell"). A Vested Option can only be exercised in
accordance with the terms of this Agreement. No transfer of
Common Stock in violation of this Agreement shall be made or
recorded on the books of the Company and any such transfer shall
be void and of no effect."
8. The legend set forth in Section 7.2 is amended in its
entirety to read as follows:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THIS SECURITY MAY BE OFFERED, SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF ONLY IN COMPLIANCE WITH THE REQUIREMENTS
OF SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
9. The first sentence of Section 7.4 is amended by deleting the
words "pursuant to Section 7.5(a) hereof (other than paragraph (a)
thereof)" and inserting the words "(other than a transfer of Vested
Options pursuant to Section 7.5 hereof)" after the words "Common Stock
or any interest therein".
10. Section 7.5 is amended in its entirety to read as follows:
"SECTION 7.5. Certain Permitted Transfers. Each Management
Investor shall have the right to Sell Vested Options to a
Permitted Transferee (as defined below). For purposes of this
Agreement, the term "Permitted Transferee" means a Person to whom
a transfer is made by will or the laws of descent and distribution
upon the death of any Management Investor; provided that no
transfer pursuant to this Section 7.5 shall be given effect on the
books of the Company unless and until the transferee shall agree
in writing, in form and substance satisfactory to the Company, to
become, and becomes, bound by all the terms of this Agreement and,
at the option of the Company, the Stockholders Agreement.
Anything to the contrary contained herein notwithstanding, no
transfer from a Management Investor or any Permitted Transferee
shall be made or recorded on the stock transfer records of the
Company if, as a result thereof, the Company would be required to
register any Common Stock under the Securities Act, the Exchange
Act, or any applicable state securities or "blue sky" laws or
would become subject to or would be in violation of the Investment
Company Act."
11. Article VIII is amended by deleting Sections 8.1, 8.2, 8.3,
8.4, 8.5 and 8.6 thereof and by renumbering Sections 8.7, 8.8, 8.9 and
8.10 (as applicable) as Sections 8.1, 8.2, 8.3 and 8.4, respectively.
12. The first sentence of Section 9.2 is amended by deleting the
portion of such sentence that follows the words "in the event of such
breach he shall" and by substituting the following therefor:
", in the case of any Vested Options exercised within six months
of (or subsequent to) such termination of employment, promptly pay
to the Company an amount in cash equal to the difference between
the Fair Market Value of a share of Common Stock on the date of
exercise of such Vested Options and the exercise price of such
Vested Options multiplied by the number of shares of Common Stock
subject to such Vested Options."
13. The second sentence of Section 9.2 is amended by deleting
the words "clause (i) or (ii) of" and ", as applicable".
FORT HOWARD CORPORATION
By: /s/ James W. Nellen II
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Name: James W. Nellen II
Title: Vice President
Agreed:
/s/ Donald H. DeMeuse
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Donald H. DeMeuse
/s/ Kathleen J. Hempel
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Kathleen J. Hempel